254 F.2d 297 (5th Cir. 1958), 16667, Carbon Black Export, Inc. v. The Monrosa

Docket Nº:16667.
Citation:254 F.2d 297
Party Name:CARBON BLACK EXPORT, Inc., Appellant, v. THE SS MONROSA, Her Engines, Tackle, Etc., and Navigazione Alta Italia, Appellees.
Case Date:April 18, 1958
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 297

254 F.2d 297 (5th Cir. 1958)

CARBON BLACK EXPORT, Inc., Appellant,

v.

THE SS MONROSA, Her Engines, Tackle, Etc., and Navigazione Alta Italia, Appellees.

No. 16667.

United States Court of Appeals, Fifth Circuit.

April 18, 1958

Page 298

Carl G. Stearns, Houston, Tex. (Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., Hill, Rivkins, Middleton, Louis & Warburton, New York City, of counsel), for appellant.

E. D. Vickery, George W. Renaudin, Houston, Tex., (Royston & Rayzor, Houston, Tex., of counsel), for appellees.

Before BORAH, TUTTLE and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

This appeal presents the question whether the court below correctly declined jurisdiction (on the ground that the bills of lading vested exclusive jurisdiction in Italian Courts) of a libel for damages to and nondelivery of cargo, brought by an American citizen against the ship upon which the cargo was loaded and against the owner of the ship. In December, 1955, the libelant, Carbon Black Export, Inc., a manufacturer and exporter of carbon black, delivered to, and shipped on board, the SS Monrosa at Houston, Texas and New Orleans, Louisiana about 30, 000 bags of carbon black. The shipments to three Italian ports were covered by twenty-seven bills of lading, all on the same printed form.

Upon arrival of the Monrosa at the first Italian port, a portion of the shipment was delivered in damaged condition, and that destined for the other two Italian ports was never delivered at all. Libelant claimed damages in the sum of $110, 000.00.

The libel was filed in the court below upon the return, some three months later, of the Monrosa to Houston, Texas and prayed that process issue against the Monrosa, her engines, tackle, etc., and that all persons claiming any right, title or interest in the steamship be cited to appear and that the steamship be condemned and sold to pay libelant's demands. Besides the in rem action against the Monrosa, Navigazione Alta Italia, the owner of the vessel, was made a respondent.

Six days after the filing of the libel respondent Navigazione filed a 'Stipulation to Abide Decree, ' reciting that the in rem proceeding had been brought against the SS Monrosa and that Navigazione had filed a claim 1 to the vessel, and including this language: '* * * the parties hereto hereby consenting and agreeing, that in case of default or contumacy on the part of said claimant or its surety, execution may issue against their goods, chattels and land for the sum of $100, 000.00.' This stipulation, on which National Surety Corporation was surety, was conditioned 'that the claimant above named shall abide by and pay the money awarded, including costs of court, by the final decree rendered in the cause by this court, or in case of an appeal by the appellate court.'

About three months thereafter respondent Navigazione filed a motion praying that the court below decline jurisdiction

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of the cause based upon the terms of the bills of lading, chiefly the following provision:

'Clause 27-- Also, that no legal proceedings may be brought against the Captain or ship owners or their agents in respect to any loss of or damage to any goods herein specified, except in Genoa, it being understood and agreed that every other Tribunal in the place or places where the goods were shipped or landed is incompetent, notwithstanding that the ship may be legally represented there.'

The motion set up grounds which respondents contended established the reasonableness of this provision. Affidavits were thereupon filed by one of the proctors for libelant opposing the motion, and one of the proctors for respondents favoring it. The facts upon which the court below acted were set forth in the motion and the two affidavits.

The District Court filed a memorandum opinion 2 and entered a final decree reciting that it was 'of the opinion that it has not been shown that the agreement in the bills of lading between Libellant and Respondents to sue or be sued only in the Courts of Genoa, Italy, is unreasonable, ' and granting the motion of respondents to decline jurisdiction and canceling and...

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